Febuary v. State of Oregon
361 Or. 544
| Or. | 2017Background
- Roger Febuary was originally convicted by jury on five counts (multiple felonies and misdemeanors) and sentenced to an aggregate of 170 months’ imprisonment plus 60 months’ probation; the Court of Appeals reversed and remanded for evidentiary error.
- On remand Febuary pleaded guilty to two counts (one felony sexual abuse in the first degree and one misdemeanor for furnishing alcohol to a person under 21); the state dismissed the other counts.
- At resentencing the trial judge imposed 75 months’ imprisonment on the felony and 12 months’ imprisonment (consecutive) on the misdemeanor, resulting in an aggregate sentence of 87 months—shorter in total than the original 170-month sentence but an increase on the misdemeanor count (from probation to 12 months).
- Febuary challenged the misdemeanor prison term as violating the Pearce/Partain rule against vindictive resentencing, arguing (1) the same judge resentenced him (creating a presumption of improper motive) and (2) under a “remainder aggregate” method the new sentence on the re-sentenced counts was “more severe.”
- The Court of Appeals affirmed; the Oregon Supreme Court granted review to address jurisdiction and the proper legal standard for multi-count resentencings under Pearce and Partain.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Febuary) | Held |
|---|---|---|---|
| Jurisdiction to review resentencing of a mixed felony/misdemeanor judgment | ORS 138.222 applies only to felonies; appeals of misdemeanor sentencing claims are governed by other statutes | ORS 138.222 authorizes appeal because the judgment contains a felony; appellate review of sentencing issues is available under ORS 138.222(4) | ORS 138.222 applies to judgments that include at least one felony; appellate jurisdiction and reviewability exist under ORS 138.222 |
| Presumption of vindictiveness when same judge imposes new sentence | No presumption solely because the same judge resentences | The same judge’s re-sentencing creates a reasonable likelihood of vindictiveness (psychological bias) warranting a presumption | Mere fact that the same judge resentences does not trigger the Pearce presumption; subconscious biases are not “improper motives” for presumption |
| Proper metric for whether a resentencing is “more severe” in multi-count cases | Aggregate-package approach: compare total original sentence to total new sentence | Remainder-aggregate (or count-by-count): compare only the sentences on counts remaining at resentencing (or any single-count increase) | Adopt aggregate-package approach: a resentencing is “more severe” only if total new sentence exceeds total original sentence |
| Application to Febuary’s case | N/A | The misdemeanor increase is vindictive because the sentence on the resentenced counts (by remainder aggregate) is greater | Febuary’s aggregate sentence on remand (87 months) was less than original aggregate (170 months + probation); no presumption of vindictiveness and no actual vindictiveness shown; conviction affirmed |
Key Cases Cited
- State v. Partain, 349 Or. 10 (Oregon Supreme Court 2010) (adopts Pearce prophylactic rule for resentencing under Oregon law)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. Supreme Court 1969) (due process forbids vindictive resentencing; presumption when second sentence is more severe)
- United States v. Goodwin, 457 U.S. 368 (U.S. Supreme Court 1982) (presumption can be rebutted by objective reasons on the record)
- Wasman v. United States, 468 U.S. 559 (U.S. Supreme Court 1984) (clarifies proof standards for actual vindictiveness and presumption application)
- Alabama v. Smith, 490 U.S. 794 (U.S. Supreme Court 1989) (addresses resentencing settings and limits on Pearce presumption)